Summarizing opinions in selected criminal cases from the Sixth Circuit Court of Appeals

Friday, March 31, 2017

Made in .... ?

Courts and law professors are fond of reminding us that the
power of the federal government is limited. To those of us who practice criminal law in
federal court, however, the limits of federal power can seem elusive. Jurisdictional elements are often quite easy
for the government to prove in the ordinary course of business because only a
rare criminal is capable of avoiding travel, telephones, the internet, or
products made abroad. As such, many defense
lawyers opt to focus on the other elements of the crime charged.

Riley Lively’s lawyer did not. He mounted a defense to challenge to the
interstate nexus element of 18 U.S.C. § 2251(a) and clarified what exactly the
government must prove to secure a conviction in federal court.

18 U.S.C. § 2251(a) prohibits sexually exploiting a minor
“for the purpose of producing any visual depiction of” that sexual exploitation
(2) if “that visual depiction was produced or transmitted using materials that
have” a nexus to interstate or foreign commerce. Lively traveled from California to Michigan
to meet up with a man he “met” in an online chatroom. One of these chatroom friends cared for a
nine-year-old boy. Once in Michigan,
Lively performed oral sex on the boy while his chatroom friend took four photos
using a digital camera. The camera had a
memory card that stored these four photos.
At some point, these four images were copied from the camera’s memory
card to a hard drive, which everyone agreed (by stipulation) was manufactured
in Thailand. To sum up, there were two
sets of images depicting the abuse: four
on the camera’s memory card, and four that had been copied onto the Thai-made
hard drive.

At the close of the government’s case, Lively argued he
could not be convicted because there was no evidence to support the federal
government’s exercise of jurisdiction.
The evidence showed only that Lively intended to produce the original
images, but nothing suggested he intended to produce the copies. And the government had proven only the origin
of the hard drive used to create the copies, not the origin of the camera and
memory card used to create the originals.
The government rested its case on the Thai-made hard drive, which
everyone agreed was made outside the United States and Michigan. In other words, the government and the district
court believed Lively committed a federal
crime if he intended to produce the original images, and someone, somewhere,
sometime reproduced those images using materials with an interstate nexus. Prosecutors did not mention or discuss the
origin of the camera or memory card used to make the original images. The district court adopted the government’s
interpretation, and Lively was convicted.

The Sixth Circuit disagreed with the government’s broad
interpretation of the statute. But
first, it clarified whether copying images from one drive to another
constitutes “producing” child pornography for purposes of 18 U.S.C. §
2251(a). Relying on the “broad and
non-technical” meaning of “producing,” the Sixth joined other circuits and held
that copying and/or digitally storing those images are manners of production.

Then the court got to the heart of the matter: Could the government prevail if the Thai-made
hard drive was the only material with an interstate nexus? The answer was “no.” Instead, the government must prove Lively
sexually exploited the minor for the purpose of producing a visual depiction of
the abuse, and “that same visual depiction” he intended to be created was “produced using materials that
have an interstate commerce nexus.” In other words, the government had to prove the camera or its memory card had a connection to interstate commerce.

So, did Lively’s victory in this hard-fought battle result
in an acquittal? No, Lively lost the
war. The Sixth Circuit scoured the
record (and even called the court clerk) to determine the origin of the
camera’s memory card. That memory card
bore a trade inscription that doomed Lively’s appeal: “Made in China.” Because the jurors had seen and held the
Chinese-made memory card, there was enough evidence in the record to uphold
the conviction.

Lively serves as a
reminder that no element is a freebie.
If the materials used to produce images were made in the U.S.A. or of
unknown origin, prosecutors must work a bit harder to prove the case belongs in
federal court and defendants must be subject to harsh federal penalties.